Citation Nr: 0120777
Decision Date: 08/14/01 Archive Date: 08/16/01
DOCKET NO. 95-13 191 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Buffalo,
New York
THE ISSUES
1. Entitlement to service connection for chronic fatigue
syndrome.
2. Entitlement to an effective date prior to August 31,
1998, for the grant of service connection for depressive and
dysthymic disorder.
3. Entitlement to an evaluation in excess of 30 percent for
depressive and dysthymic disorder.
REPRESENTATION
Appellant represented by: Robert V. Chisholm, Attorney
at Law
ATTORNEY FOR THE BOARD
D. M. Fogarty, Associate Counsel
INTRODUCTION
The veteran served on active duty from August 1952 to June
1956.
This case is before the Board of Veterans' Appeals (Board) on
appeal of rating decisions from the Department of Veterans
Affairs (VA) Regional Office (RO) in Buffalo, New York.
In a March 1994 rating decision, the RO denied entitlement to
service connection for depression and chronic fatigue
syndrome. The veteran filed a notice of disagreement in May
1994, a statement of the case was issued in March 1995, and a
substantive appeal was received in April 1995. In a May 1997
decision, the Board denied entitlement to service connection
for depression and chronic fatigue syndrome on the bases that
the claims were not well grounded. The veteran appealed that
decision to the United States Court of Appeals for Veterans
Claims (known as the United States Court of Veterans Appeals
prior to March 1, 1999) (Court). In a September 1999
decision, the Court affirmed the Board's May 1997 decision.
The veteran appealed that determination to the United States
Court of Appeals for the Federal Circuit (Federal Circuit).
In February 2001, the Federal Circuit remanded this case to
the Court for further proceedings. In a March 2001 decision,
the Court vacated the Board's May 1997 decision and remanded
the issues of entitlement to service connection for
depression and chronic fatigue syndrome to the Board.
However, in an August 1999 rating decision, the RO granted
entitlement to service connection for depressive and
dysthymic disorder, evaluated as 30 percent disabling,
effective from August 31, 1998, pursuant to receipt of new
and material evidence. Thus, the issue of entitlement to
service connection for depression has been fully satisfied
and no appeal as to that issue remains outstanding.
In regard to the issues of entitlement to a greater
evaluation and entitlement to an earlier effective date for
the grant of entitlement to service connection for depressive
and dysthymic disorder, those issues are before the Board on
appeal of the August 1999 rating decision. A notice of
disagreement was received in October 1999, a statement of the
case was issued in October 2000, and a substantive appeal was
received in November 2000.
The issues of entitlement to service connection for chronic
fatigue syndrome and entitlement to an evaluation in excess
of 30 percent for depressive and dysthymic disorder will be
addressed in the REMAND portion of this decision.
FINDINGS OF FACT
1. The veteran's claim of entitlement to service connection
for depression was originally received by the RO on July 21,
1993.
2. In a March 1994 rating decision, the RO denied
entitlement to service connection for depression and chronic
fatigue syndrome. The veteran appealed that determination to
the Board and in a May 1997 decision, the Board denied the
veteran's claims as not well grounded.
3. The Board's May 1997 decision was affirmed by the Court
in September 1999. In February 2001, the Federal Circuit
remanded the issues of entitlement to service connection for
depression and chronic fatigue syndrome to the Court, and in
March 2001, the Court vacated the Board's May 1997 decision.
4. In an August 1999 rating decision, the RO granted
entitlement to service connection for a depressive and
dysthymic disorder, based on receipt of new and material
evidence.
5. The medical evidence of record demonstrates that the
veteran has suffered from depression and a dysthymic disorder
since at least 1953, during military service.
CONCLUSION OF LAW
The criteria for an effective date of July 21, 1993, for an
award of service connection for a depressive and dysthymic
disorder have been met. 38 U.S.C.A. § 5110 (West 1991 &
Supp. 2000); Veterans Claims Assistance Act of 2000, Pub. L.
No. 106-475, 114 Stat. 2096 (2000); 38 C.F.R. §§ 3.156(b);
3.400 (2000).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Initially, the Board notes that on November 9, 2000, the
President signed into law the Veterans Claims Assistance Act
of 2000. Veterans Claims Assistance Act of 2000, Pub. L. No.
106-475, 114 Stat. 2096 (2000). This newly enacted
legislation provides, among other things, for notice and
assistance to claimants under certain circumstances. Where
laws or regulations change after a claim has been filed or
reopened and before the administrative or judicial process
has been concluded, the version most favorable to the
appellant will apply unless Congress provided otherwise or
has permitted the Secretary of Veterans Affairs to do
otherwise and the Secretary has done so. See Karnas v.
Derwinski, 1 Vet. App. 308 (1991).
After reviewing the claims folder, the Board finds that there
has been substantial compliance with the assistance
provisions of the new legislation in regard to the issue of
entitlement to an earlier effective date for the grant of
service connection for a depressive and dysthymic disorder.
Significantly, no additional pertinent evidence has been
identified by the veteran or his representative as pertinent
to this issue. The Board therefore finds that the record as
it stands is adequate to allow for equitable review of the
veteran's appeal as to this issue.
Furthermore, the veteran and his representative have been
notified of the applicable laws and regulations which set
forth the criteria for entitlement to an earlier effective
date for the grant of service connection. The discussions in
the rating decision and statement of the case have informed
the veteran and his representative of the information and
evidence necessary to warrant entitlement to the benefit
sought. The Board therefore finds that the notice
requirements of the new law have been met.
Under the circumstances of this case, where there has been
substantial compliance with the VCAA, a remand would serve no
useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540,
546 (1991) (strict adherence to requirements in the law does
not dictate an unquestioning, blind adherence in the face of
overwhelming evidence in support of the result in a
particular case; such adherence would result in unnecessarily
imposing additional burdens on VA with no benefit flowing to
the veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994)
(remands which would only result in unnecessarily imposing
additional burdens on VA with no benefit flowing to the
veteran are to be avoided). Moreover, given the completeness
of the present record which shows substantial compliance with
the notice/assistance provisions of the new legislation, the
Board finds no prejudice to the veteran by proceeding with
appellate review of this issue despite the fact that
implementing regulations have not yet been promulgated.
Effective Date Issue
The statutory guidelines for the determination of an
effective date of an award of disability compensation are set
forth in 38 U.S.C.A. § 5110. The effective date for a grant
of service connection shall be the date of receipt of the
claim or the date entitlement arose, whichever is later.
38 C.F.R. § 3.400(b)(2).
A review of the record reflects that the veteran's original
claim for service connection for depression was received by
the RO on July 21, 1993. As previously noted, the RO denied
the claim in a March 1994 rating decision and the veteran
subsequently appealed that decision to the Board. The Board
also denied the veteran's claim in a May 1997 decision. The
veteran appealed that determination to the Court, who
affirmed the Board's decision in September 1999. A
subsequent appeal to the Federal Circuit resulted in a
February 2001 remand to the Court. The Court then vacated
the Board's May 1997 decision and remanded the issue to the
Board.
Thus, because the Court vacated the Board's May 1997
decision, the veteran's original claim for service connection
for depression remained open. Therefore, the RO's August
1999 rating decision granting service connection for
depressive and dysthymic disorder related to the veteran's
original claim for service connection, rather to his
application to reopen the claim. See 38 C.F.R. § 3.156(b).
Additionally, a December 1998 private psychiatric evaluation
reflects an opinion that the veteran's current psychiatric
condition dated back to at least 1953, while he was in
service. The psychiatrist noted several service medical
records suggestive of ongoing paranoia, difficulty coping,
and psychiatric problems. Additionally, an August 1999 VA
examiner opined that an in-service incident might have indeed
contributed to the onset of the veteran's dysthymic disorder.
This evidence indicates that the veteran was entitled to
service connection for a dysthymic disorder at the time of
his original claim, received July 21, 1993.
Thus, the appropriate effective date for the grant of service
connection for depressive and dysthymic disorder is July 21,
1993, the date of receipt of the veteran's original service
connection claim. Accordingly, the proper effective date for
the grant of service connection for depressive and dysthymic
disorder is July 21, 1993. 38 U.S.C.A. § 5110; 38 C.F.R.
§ 3.400(b)(2).
ORDER
An effective date of July 21, 1993, for service connection
for depressive and dysthymic disorder is granted.
REMAND
In regard to the issue of entitlement to service connection
for chronic fatigue syndrome, the evidence of record reflects
complaints of fatigue, headaches, difficulty sleeping, and
muscular pain during service. Additionally, post-service
medical records reflect complaints of marked fatigue
throughout the day, lack of energy, lack of concentration,
difficulty sleeping, and listlessness. The veteran has also
reported that he does not feel rested in the mornings.
Finally, an August 1999 VA examination report notes that the
veteran did report a history of chronic fatigue syndrome and
indicated that his physician had reluctantly agreed to such a
diagnosis.
Additionally, as previously noted there has been a
significant change in the law during the pendency of this
appeal. On November 9, 2000, the President signed into law
the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L.
No. 106-475, 114 Stat. 2096 (2000). This law redefines the
obligations of VA with respect to the duty to assist and
includes an enhanced duty to notify a claimant as to the
information and evidence necessary to substantiate a claim
for VA benefits. This law also eliminates the concept of a
well-grounded claim and supersedes the decision of the United
States Court of Appeals for Veterans Claims in Morton v.
West, 12 Vet. App. 477 (1999), withdrawn sub nom. Morton v.
Gober, No. 96-1517 (U.S. Vet. App. Nov. 6, 2000) (per curiam
order), which had held that VA cannot assist in the
development of a claim that is not well grounded. This
change in the law is applicable to all claims filed on or
after the date of enactment of the VCAA, or filed before the
date of enactment and not yet final as of that date.
Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475,
§ 7, subpart (a), 114 Stat. 2096, 2099-2100 (2000).
In light of the aforementioned evidence as well as the recent
changes in the law as a result of the enactment of the VCAA,
the Board is compelled to conclude that a remand of this
issue to the RO is warranted for a VA medical examination and
opinion.
Furthermore, in light of the Board's assignment herein of an
effective date of July 21, 1993, for the grant of service
connection for depressive and dysthymic disorder, the issue
of entitlement to an evaluation in excess of 30 percent for a
depressive and dysthymic disorder must also be remanded to
the RO for an evaluation of the disability throughout the
entire period. The RO should also consider the applicability
of Karnas v. Derwinski, 1 Vet. App. 308 (1991) and Fenderson
v. West, 12 Vet. App. 119 (1999).
The rating criteria applicable to mood disorders were revised
effective November 7, 1996, during the pendency of the
veteran's appeal. The Court has held that where the law or
regulation changes after the claim has been filed, but before
the administrative or judicial process has been concluded,
the version most favorable to the veteran applies unless
Congress provided otherwise or permitted the VA Secretary to
do otherwise and the Secretary did so. See Karnas v.
Derwinski, 1 Vet. App. at 313. In light of the fact that the
veteran filed his claim before November 7, 1996, his
psychiatric disability must be considered in light of both
the new and old criteria.
In Fenderson, the Court held that evidence to be considered
in the appeal of an initial assignment of a rating disability
was not limited to that reflecting the then current severity
of the disorder. Cf. Francisco v. Brown, 7 Vet. App. 55, 58
(1994). In Fenderson, the Court also discussed the concept
of the "staging" of ratings, finding that, in cases where
an initially assigned disability evaluation has been
disagreed with, it was possible for a veteran to be awarded
separate percentage evaluations for separate periods based on
the facts found during the appeal period. Fenderson v. West,
12 Vet. App. at 126.
Furthermore, as several years have passed since the veteran's
last VA psychiatric examination, the Board is of the opinion
that an additional VA examination is warranted to
appropriately determine his current level of disability.
Accordingly, the issues of entitlement to service connection
for chronic fatigue syndrome and entitlement to an evaluation
in excess of 30 percent for depressive and dysthymic disorder
are REMANDED to the RO for the following actions:
1. The RO must review the claims file and
ensure that all notification and
development action required by the
Veterans Claims Assistance Act of 2000,
Pub. L. No. 106-475 is completed. In
particular, the RO should ensure that the
new notification requirements and
development procedures contained in
sections 3 and 4 of the Act (to be
codified as amended at 38 U.S.C. §§ 5102,
5103, 5103A, and 5107) are fully complied
with and satisfied.
2. The RO should contact the veteran and
obtain the names and addresses of all
medical care providers who have treated
him for his depressive disorder and/or
chronic fatigue syndrome since 1990.
After securing the necessary permission
from the veteran, copies of any available
records that are not already of record
should be requested and associated with
the claims folder.
3. The veteran should be scheduled for a
VA specialist examination in regard to
his alleged chronic fatigue syndrome to
determine the nature and etiology of any
current disorder. The claims folder and
a copy of this REMAND must be made
available to and be reviewed by the
examiner in conjunction with the
examination. All necessary tests or
studies should be performed and all
findings must be reported in detail. All
relevant symptomatology should also be
reported in detail. The examiner is
requested to express an opinion as to
whether the veteran's symptomatology
establishes a clinical diagnosis of
chronic fatigue syndrome. If a diagnosis
of chronic fatigue syndrome is
appropriate, the examiner is requested to
express an opinion as to whether it is at
least as likely as not that such a
disorder is related to an incident of
military service or a service-connected
disability. All such information and
opinions, when obtained, should be made a
part of the veteran's claims file. A
complete rationale for any opinion
expressed must be provided.
4. The veteran should also be scheduled
for a VA psychiatric examination to
determine the current severity of his
service-connected depressive and
dysthymic disorder. The claims folder
and a copy of this REMAND must be made
available to and be reviewed by the
examiner in conjunction with the
examination. All relevant symptomatology
must be reported in detail. The examiner
is requested to express an opinion as to
the current severity of the veteran's
service-connected depressive and
dysthymic disorder, including an opinion
as to the current level of occupational
and social impairment. A multi-axial
assessment should be conducted, and a
thorough discussion of Axis IV
(psychosocial and environmental problems)
and Axis V (Global Assessment of
Functioning (GAF) score), with an
explanation of the numeric code assigned,
must be included. A complete rationale
for all conclusions should also be
provided.
5. Thereafter, the RO should again
consider the issues of entitlement to
service connection for chronic fatigue
syndrome and entitlement to an evaluation
in excess of 30 percent for depressive and
dysthymic disorder. The RO should
consider the issue of entitlement to an
evaluation in excess of 30 percent for a
depressive and dysthymic disorder in light
of the Court's decisions in Karnas and
Fenderson.
6. If any benefit sought on appeal
remains denied, the veteran and his
representative, if any, should be provided
a supplemental statement of the case
(SSOC). The SSOC must contain notice of
all relevant actions taken on the claims
for benefits, to include a summary of the
evidence and applicable law and
regulations considered pertinent to the
issues currently on appeal. An
appropriate period of time should be
allowed for response.
Thereafter, the case should be returned to the Board for
further appellate consideration. The Board intimates no
opinion as to the ultimate outcome of this case. The veteran
need take no action unless otherwise notified. The Board
notes the veteran has the right to submit additional evidence
and argument on the matters the Board has remanded to the
regional office. Kutscherousky v. West, 12 Vet. App. 369
(1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West Supp. 2000) (Historical and
Statutory Notes). In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV, directs the ROs to provide
expeditious handling of all cases that have been
remanded by the Board and the Court. See M21-1, Part IV,
paras. 8.44-8.45 and 38.02-38.03.
William Harryman
Acting Member, Board of Veterans' Appeals